1517042 (Refugee)

This matter concerned an appeal by a protection visa holder against the cancellation of their visa under section 109 of the Migration Act 1958 (Cth). The applicant, who claimed to be a stateless Rohingya from Myanmar, had provided information to the Department regarding their ethnicity and experiences in Myanmar and Bangladesh. The dispute centred on whether the applicant had provided a bogus document or incorrect information, thereby failing to comply with the requirements of the Act. The decision was made by Shahyar Roushan.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the provisions of the Migration Act by providing a bogus document or incorrect information, and whether the notice issued under section 107 of the Act was valid. The Tribunal was also required to consider the validity of a section 438 certificate, which the Department had relied upon to withhold certain documents from disclosure.

The Tribunal found that the section 438 certificate was invalid as the stated reason for non-disclosure, relating to "internal working documents and business affairs," did not provide a sufficient basis for public interest immunity. Regarding the applicant's compliance, the Tribunal determined that while the applicant had provided incorrect information about their experiences in Myanmar and Bangladesh, they had provided correct information regarding their Rohingya ethnicity and statelessness. Crucially, the Tribunal found that the applicant had not provided bogus documents. The Tribunal also confirmed that the section 107 notice complied with statutory requirements and that the delegate had reached the necessary state of mind to engage section 107. Applying the principles from *Zhao v MIMA*, the Tribunal noted that a visa cannot be cancelled simply because the visa holder has failed to show cause why it should not be cancelled, and that the decision-maker must be satisfied of a ground for cancellation based on available material.

The Tribunal concluded that, despite the provision of some incorrect information, the applicant had not provided bogus documents and that the circumstances of the case, including the applicant's statelessness and the likely consequence of indefinite detention upon cancellation, weighed against cancellation. Therefore, the Tribunal ordered that the visa should not be cancelled.